Hossain Ripon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 916/2017

[2018] HKCFI 2184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 916 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and the Applicant being absent;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.The applicant is a 36-year-old national of Bangladesh who entered Hong Kong illegally in April 2013 and was arrested by police on 28 June 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his uncle over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.     

2.By a Notice of Decision dated 15 March 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

3.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and doubted his claim due to various inconsistencies in his assertions, that his problems with his uncle was a private and personal family dispute and that in the absence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from his home district such as Chittagong where it would be difficult if not impossible for  his uncle to locate him.

4.By a Notice of Further Decision dated 10 January 2017 the Director again rejected the applicant’s claim after receiving and considering further representation submitted by him relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

5.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, of which appeal he filed on 24 March 2016, and for which he attended an oral hearing on 24 February 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 28 March 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

6.On 3 April 2017 the applicant filed his Form 86 under HCAL 111/2017 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)     procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)     irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)     irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(4)     irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;

(5)     irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)     procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)     procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(8)     procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

7.On 18 September 2017 and upon appearing in person before Madam Justice Toh, his application was refused as none of his grounds was found to be reasonably arguable for his intended challenge.

8.That decision was never appealed by the applicant who instead on 20 November 2017 filed another Form 86 in these proceedings now before me, and in his supporting affirmation of the same date he put forward exactly the same eight grounds as above for his intended application, and at the scheduled hearing before me he failed to appear, but on the following day he wrote to explain that he had misread the date of the scheduled hearing and asked for another hearing.

9.As his leave application for judicial review of the Board’s decision has already been properly dealt with and disposed of by another court and hence the principle of res judicata applies, this second application is clearly an abuse of the court process by the applicant, for which I do not propose to allow him any further hearing so as not to waste any more of the court’s time and resources except to hereby forthwith dismiss his application.

Dated the 19^th day of October 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1